Saturday, January 17, 2009

Dershowitz on UPI

"Until Proven Innocent," an account of the Duke lacrosse case, should be ranked high among works that disprove the notion that those charged with serious crimes are invariably guilty and that those who are acquitted somehow beat the system. Stuart Taylor Jr. and KC Johnson pillory not only the prosecutor in the supposed sexual-assault case -- he was eventually disbarred after charges against the three players were dropped before going to trial -- but also the president of Duke University and those on his faculty who were willing to sacrifice innocent students as a bizarre form of racial reparation. The Duke case demonstrates how contemporary political correctness, run amok, can deform the legal system just as dramatically as other prejudices have in the past.

"I suggest you consider auditing a graduate level course in political science or marketing and promotional strategy before you take on the politics of torture warrants or anything else for that matter outside the field of chemistry and biochemistry."

I think a reasonable person might find that comment a bit harsh, GP.

If all of us who comment here were restricted to commenting only on those issues not "outside [our] field," KC could have closed the Blog and comments years ago.

Frankly, I disagree with halides1's premise in his comment. But, both your suggestion that he restrict his comments to his professional field of study, and your implication that he is using the DIW Blog to "get a little 'awareness' for [his] pet political issue" strikes me as remarkable and unseemly on your part.

Perhaps halides1 needs to appreciate that he can agree with Dershowitz's view of UPI without that opinion being colored by other views Dershowitz might hold.

And then, perhaps you need to appreciate that one of the great strengths of this Blog has been astute commentary from different (and dare I say, diverse) individuals representing a wide variety of fields of study and experience.

Although I've not often agreed with Alan Dershowitz's opinions, his summary of UPI is a model of brilliance and clarity. As might be expected, the bulk of his commentary is devoted to legal aspects of the case, but his statement also illuminates the perfidy of Duke administration and faculty.

As the ramifications of this case continue, it has been intriguing that the issue of legal malpractice, in the person of Nifong, has been the sole theme that has received widespread attention and acceptance as a causation factor in this entire shameful episode. Pundits far and wide have used massive amounts of ink and bandwidth to expound on such topics as “prosecutorial misconduct,” “a rush to judgment,” and the actions of a “rogue prosecutor.”

But even cursory examinations of the known public facts of this case reveal significant instances of medical malpractice; law enforcement malpractice; educational administrative malpractice; academic malpractice; and journalistic malpractice.

While all of those professions had (and have) in place written standards of practice, conduct, ethics, and behavior, only the oft-maligned legal profession took affirmative steps to control the activities of one of its own, despite the fact that its action was almost unprecedented, nearly did not happen, and was far too late in occurring. And while the NC Bar was quick to declare that its “system worked,” to me that admission was like an aircraft maintenance organization asserting, “Well yes, we allowed the aircraft to operate knowing it was fraught with mechanical and structural problems, but when it failed in flight, the pilot was able to parachute to safety.”

But, if you’re a student and shout “Shut up you water buffalos!” to a group of overweight women shrieking outside your dorm window while you’re trying to study, you’ll be charged with racial harassment, in accordance with written policy, quicker than you can say “Larry Moneta.”

In the wake of the Duke lacrosse rape hoax, where then is the oversight for violations of written procedure at Duke Medial Center, the Durham Police Department, Duke University administration, the Duke Faculty, and numerous news organizations in North Carolina and nationwide?

Where is the corrective action, mandatory “sensitivity training,”re-education and training, and most of all, where are the penalties for those “professionals” who have violated written procedure? And, where is the outrage?

The usual narrative was a grubby little PC fight on the Anytown University campus involving allegations of insensitive words or actions. The PC crowd had always won that battle because they held all the cards. The metanarrative was to try their hand on a grander scale and affect the criminal justice system and the media. And for a time, they succeeded.

Thanks to K.C. Johnson for his role in stopping this potentially horrible precedent and for, hopefully, providing a lesson for future generations.

One Spook illuminates what is, I think, the most frightening aspect of what happened in Durham - that the police, educational, and medical authorities can throw established law to the wind and operate without censure according to whatever set of rules (ever changing) that suits their fancy. The fact that Moneta, Alleva (yes he is now at LSU, unfortunately for that institution), Wausiolek, Brodhead, and Steel are still ensconsed in postitions of authority means that there is no real censure for the actions that they took. Likewise, the election of Cline in Durham and her comments to the effect that the lacrosse case is "behind us" indicates that the good citizens of Durham have learned nothing either thus insuring that it is only a matter of time before another incident occurs. Though Himan and Gottlieb are long gone, the administration which allowed procedure to be manipulated illegally, still remains in place. Tara Levicy has left DUMC for greener pastures in New England (lucky them!) but one has asked and received an answer as to what real changes in policy and procedure have been effected in that institution. RCD, their families, Coach Pressler and his family, as well as the other members of the lax team and their families paid a high price because there were those in the Durham/Duke community who were willing to suspend common sense on the altar of political correctness and to do any and everything that was necessary to show that in a question of race, history had changed. They are the public faces of what is a chilling fact for each and every person - while there can be laws that protect our liberties, those laws are only as strong a guarantee of our rights as are the ethical practices and sense of honor of those who are responsible for enforcing them. The aforementioned gang - Nifong, Brodhead, the Durham police, and the DUMC with the people for whom each of the above had responsibility were not only ethically challenged - they were without any at all. What that collective group did not count on was three men who realized that those who were charged with teaching and modeling ethical behavior were shams and that they would have to be forthright in the face of adversity and refuse to kowtow to those around them who assaulted their veracity on a daily basis. They were fortunate in having loving families who were just as resolute and who would sacrifice all rather than give in to the hordes. KC Johnson and Stuart Taylor did much to bring to the public attention not just the nefarious actions of Nifong but the doings on Duke's campus by the intellectual elite who wanted (demanded?) that the white, male,"wealthy", athletic presence be subjugated to a new paradigm.The facts of the "case" were of no matter - the meta-narrative constructed by the Gang of 88, the police who saw in Duke students a group that could be easily bullied to enrich the Durham coffers by charges that entailed paying hefty fines (said charges not being levied against the locals who could not pay fees to keep a clean record sheet), a DA and his office who were more intent on winning an election than in justice, and a justice system in North Carolina which allows the railroading of innocent people through its grand jury procedures and judges who are in the pocket of the local DA - it was the meta narratie that was paramount. That is way it is so important that the civil cases be allowed to continue and why, as Dershowitz explains, this case should be required reading.cks

I presume he would be appalled, but so what. Anyone can ask a rhetorical question based on a counter-factual premise. Quite childish. Evidence for your premise is what is required, and your inability to provide any is dispositive.

@ One Spook

I hate to disagree with someone who just recently gave me kind words, but I believe it is sensible that attention (outside this blog) has been almost exclusively focused on the delicts of the legal system.

It is not that I am biased against lawyers; I am admittedly biased against the US legal system, with which I have been dealing for over thirty years.

Prosecutors, judges (including administrative law judges), and even private attorneys have unbelievable power to ruin peoples' lives. Furthermore, the law, largely crafted by lawyers themselves, provides important privileges for lawyers. The code of ethics for lawyers, entirely crafted by lawyers themselves, permits them to do things that few lay persons could ethically, or even legally, do. So when lawyers, particularly prosecutors, violate their own self-established code of ethics, it represents a violent and dangerous breach of faith with the rest of society.

By and large, the other groups (e.g. university teachers), who undoubtedly did violate their professional codes of ethics (e.g. by engaging in grade retaliation), are not granted unusual privileges. Thus, violations of their codes of ethics are their own business with two exceptions.

The first exception is when members of a group violate the group's own self-imposed code of ethics and simulataneously violate that minimal common code of ethics known as the law. In that case, the members of the group deserve the penalties and the contempt rightfully due to those who breach contract or commit torts or crimes. If a university administration cannot abide by the law, it is surely irrelevant that they failed to abide by some higher code of ethics. It is not because most criminals look down on child molesters that the rest of us also condemn molestation.

The second exception is when a group requests social deference or prestige because of their self-declared "professional" status. For example, Cathy Davidson of Duke's English Department has publicly declared herself to be a "person of conscience," implicitly claiming superior ethical insight over the rest of us. If enough members of such a group fail to abide by their own minimal standards of conduct, using that failure to deny that group deference and respect is fair. I, however, believe it better to challenge these claims of superiority more generally: teaching English or even ethics does not entail that the teacher behaves any more more morally than the butcher, baker, or brewer. The self-serving and self-congratulatory assertions of a Cathy Davidson should be denied however scrupulously she may have adhered to any additional ethical code that English teachers have decided is necessary to the proper execution of their job.

KC teaches in a university. He is naturally and rightfully concerned about the failure of university teachers and administrators to abide by the standards that they themselves have deemed necessary and appropriate. For the rest of us, this is a family quarrel that is best left alone. Duke University breached contracts, committed torts, and contravened statutory mandates; these wholesale violations of the minimal ethical code applicable to all of us is sufficient to demonstrate Duke's corruption to me.

Somewhat OT, but I wonder the extent to which universities have large angry studies departments because of the size of the pool of Federal grant money made available for this type of "research". When nearly all of this money winds up supporting only one point of view, suppressing diversity of thought under the pretext of embracing diversity, the only term that fits is agitprop.

So what I'm trying to raise is the extent to which problems created by the angry studies are really taxpayer funded attempts to distort reality for political purposes?

It seems to me the larger impact of Dershowitz's article is that he places the Durham hoax (and Until Proven Innocent) in the same class as other "momentous" and historic legal cases as presented in the other "praised" books.

That company suggests the Duke hoax will stand the test of time regardless of how diligent the Klan of 88 and other "something happened" revisionist hope the scrutiny dissolves. Those cases place "Until Proven Innocent" and more importantly the events themselves in very tall cotton.

It is comforting to know that Brodhead, Steel, Davidson, Lubiano, Baker, Trask, Curtis, Gottlieb, Grace, Nifong, Levicy, Wood, and others continue to have their names etched in stone for being on the wrong side of history (truth/justice).

This must be a mind-jammer for those relativists who don't acknowledge right/wrong.

To K.C. Johnson -- Well deserved praise from someone with clout and the people's attention! I personally think that this case was important for a number of reasons, but here are two which make it unique: (1) Almost all aspects of society had to join in the lynching for it to fester for so long and nearly succeed, and they enthusiastically did so. (2) Professor Johnson's ability to challenge this seminal case of PC in the courtroom on two fronts -- with a blog and a book -- are unique and, dare I say, historic.

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To the cute little troll who won't read the source documents or even the AG's report like we all did, there's also res ipsa loquitur. In this case, the sound of silence. If the rabid, white male hating crowd at Duke and in Durham thought there was a shred of evidence, they would still be screeching and protesting and editorializing and professoring their hate.

**********

Whatever happened with my suggestion that Duke University invest in "Insensitivity Training" for incoming freshmen? They need to be protected.

Because of Dershowitz' mention of UPI in the Journal, I picked up and read the book. I am one of, I am sure, many people who didn't follow the case closely but sort of remember the Duke case. Something happened, then there was prosecutorial misconduct, the case dropped, the prosecutor disgraced. Upon reading Until Proven Innocent I came to see how astonishing, how brazen, how illegal was the misconduct. UPI expands the narrative to include the shameful and even horrifying behavior of the Duke Univ administration and many of the faculty. My profound thanks to you for researching and writing it, as well as to Prof. Dershowitz for giving it the attention it must have.

You imply that you are privvy to knowledge that KC has but we do not and that this knowledge will drastically change our opinion of the case. Okay, put up or shut up. Share what it is you know. Otherwise, go flounder on another blog.

If I understand this right, the insurance company is telling Duke, "Your Blue Wall of Silence (BWS) will cost you another $5 million, on top of the at least $30 million it's cost you so far."

One thing the infamous Ad of 88 said that is true: "Most disasters have a history". To find this one's, I recommend looking at what college admissions officers say are the "dirty little secrets" of their profession.

I particularly recommend searching there for "Asian math genius with no personality" and "typical white girl from New Jersey".

I hope someone has been keeping track of the amount of money Brodhead and Steele have cost Duke University. I've heard the Duke Board is comprised of weak "Yes" persons, but how can these people not see the 1)Settlements to the three players and others,2)The loss of alumni financial support 3) The loss of investment earnings caused by poor decisions above and beyond the economic downturn,4) The massive legal bills from multiple law firms 4) The loss of insurance coverage because of inept leadership and poor communication, and 5) the soon to be awarded judgments from existing civil litigationa and/ or settlements. That's just billions. What is most unfortunate is the loss of prestige and reputation.

Where are the spines of the Duke University Board members. Stop the losses now.

1) On the basis of the same two pieces of "evidence" that the grand jury indicted Seligmann and Finnerty--the procedurally flawed lineup ordered by Nifong; and the inaccurate "report" of former SANE nurse-in-training and current civil suit defendant Tara Levicy.

2.) They indicted Evans for the same reason the same grand jury indicted 80 other people on May 15, 2006: they trusted the version of events presented to them by the only witness they heard, a DPD officer.

What facts of the case against Evans has Johnson refused to disclose?

A: None. Remarkably, however, the conspiracy theory you seem to have spun includes not only the state Attorney General, a local reporter, and me--but also Mike Nifong! In neither his ethics hearing nor his criminal contempt trial did Nifong ever present any "facts of the case" to suggest that the indictment of Evans was justified.

What exculpatory evidence in favorof Nifong is Johnson hiding from his readers?

A: None.

And yes it is all on the record.

If it is "all on the record," I invite you to point to "it." Provide specific pieces of evidence "on the record" that substantiate your claims. Otherwise, I am disinclined to clear additional comments that simply make insinuations against innocent people, saying the same thing over and over again.

"Otherwise, I am disinclined to clear additional comments that simply make insinuations against innocent people, saying the same thing over and over again."

Yes, please. Ignore the idiot behind the curtain. And you are correct, you should not be the host to more false allegations.

The fact that there is still a "troll" who will make any ridiculous statement is not particularly significant or interesting. Considering the logical assumptions as to the identity of this final "bitter clinger" even less significant.

If there were a horde or any comments of merit, you should certainly allow them and address them. Otherwise you are just feeding the troll, which is a waste of your time and talents.

First, to several of my fellow commentators; thank you for your kind words; I humbly appreciate those.

To Jeff M on 1/20/09 @ 11:50 AM:

I respect your views and did not see them as a disagreement with me, per se.

To me, the State Bar's action against Nifong was not based upon his “privilege” as a prosecutor but rather, because of his abuse of power. The ethical rules of conduct established by the Bar are intended to act as a check of that power.

Similarly, ethical rules, written operating procedures, faculty handbooks, and other internal “codes of conduct” that pertain to law enforcement officials; university administrators, professors and faculty; medical professionals; and journalists also exist as a check of their power.

As he has written and stated, what attracted KC Johnson’s attention to this case in the first place was the infamous “Listening Statement” which he correctly and rightfully viewed as an extraordinary lack of fealty to the traditional mores and ethics of the academy which presume a “dispassionate examination of facts” in all issues and, at a bare minimum, a “presumption of innocence” in all matters pertaining to the conduct of students, over which the academy exercises significant power and authority.

To me, when members of a faculty presume the guilt of students charged with serious crimes that never occurred but that could result in decades of imprisonment, that rises well beyond a “a family quarrel that is best left alone.”

When Johnson delved further into the case, he carefully observed and documented behavior on the part of various professionals that constituted violations of law, established procedure, ethics, and codes of conduct that were both criminal and tortious in nature. Johnson, together with noted legal writer Stuart Taylor, produced an outstanding book in Until Proven Innocent (UPI).

When a highly respected legal authority such as Alan Dershowitz recognizes UPI in a presentation as one of five “accounts of momentous legal cases,” then it is obvious this case has received attention in the legal community.

But,

When a police officer can publicly offer written and oral statements (exactly as DA Nifong did) that unequivocally presume the guilt of private citizens;

When a trainee SANE nurse can, on her own initiative and absent any written medical evidence to support it, proffer testimony that is both false, misleading, and extremely damaging;

When a university president can willfully ignore a group of parents of his students charged with a serious capital crime coincident with making a public statement that “whatever they did was bad enough,” plus permit his faculty subordinates to willfully slander those students with impunity;

When university professors can, before any salient facts of a legal case against their students are known, rush to judgment and make public written and oral defamatory statements presuming the guilt of these students, and remain unapologetic about their actions;

And when a national and local media can, without even a cursory examination of known facts, make statements, and print and air obvious falsehoods about American citizens;

Then, in the famous words of the Apollo 13 crew, “Houston, We’ve got a problem.”

At least the legal profession has taken steps to deal with the problem of a miscreant in its midst by barring that person from ever practicing law. These other professions have not either recognized to any significant extent, or taken action against any of those of their colleagues who have committed these wrongs.

What then are the purposes of all of these laws, procedures, and professional codes of conduct?

They are useless. They become as “a tale told by an idiot, full of sound and fury, signifying nothing."

There is a Coke ad that's been running on TV for about a year. In it two represetatives of one Coke division want to sue another Coke division for "taste infringement." They enlist an unknowing outside consultant or lawyer and try to persuade him to help. Meanwhile they're saying all sorts of nonsensical things and the outside expert just doesn't know how to respond because the two Coke guys are speaking such drivel. The humor in the ads derive from the reactions of the outside guy.

I think the troll who has shown up in this and other comment threads is just like the ad. There is simply no way anyone can as stupid as he/she appears to be. My guess this is a prank dreamed up in a fraternity house somewhere. They're just trying to see what reaction they can provoke. I repeat. Anyone who can find this website and type a comment cannot possibly be as stupid as this troll appears to be.

The diehards on the side of the hoax enablers seem to have become accustomed to needing to produce some kind of "comeback" to the relentlessly effect relevations and arguments of KC and other brave blog hooligans without actually having any facts or arguments that can help their cause. But they have found a way. They just pretend such facts exist and then attempt to taunt their opponents with a challenge to discuss these facts which have not been disclosed and in fact never existed. Since their opponents find that impossible to do, the enablers get to feel like they "won", even if it is only for a second and even if it is all inside their own little minds.For some kinds of people, I suppose that counts as better than nothing. For the rest of us, it counts as a good deal less than nothing.

You have not responded to any challenge to produce evidence to support your claims. Then you rest your case.

You are skulking away from the debate rather than standing up for your asertions, just like a lot of enablers skulked away from cgm and from Mike Nifong when their case was exposed as a politically motivated fraud.

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About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review